Thursday, June 30, 2005

A federal judge agreed yesterday to reconsiderwhether attorneys can question the other side's witnesses.

The hearing before U.S. District Judge Eldon Fallon focused on two points deemed critical by patients suing the drug giant: whether they will have access to records concerning Vioxx maker Merck's sales force of some 3,000 people, and whether Merck can talk to doctors who prescribed the drug. Plaintiffs' attorneys want to have the records for their cases, but also are asking Fallon to prevent Merck's lawyers from speaking with the doctors.

The plaintiffs want to keep Merck from contact with doctors who prescribed the drug because they fear the company will influence their testimony. Merck argues against the prohibition, for exactly the same reason. On June 6, Fallon ruled that if one side can question the doctors, so can the other.

The judge agreed to reconsider his earlier decision, suggesting both sides could meet at the same time with doctors who have been sued. Still, that number represents only a small percentage of all doctors involved.

Another contentious point is information on the Merck sales team, which persuaded doctors to prescribe the drug.

Merck insists it would put an undue strain on the company to turn over all its sales force records. But the patients and their lawyers say information about how the Merck team sold doctors on Vioxx is crucial.

this is from various sources, including yahoo, and attorneys who were at the hearing.

The Washington Legal Foundation (WLF) filed a judicial misconduct complaint against Alabama Circuit Judge John Rochester with the Alabama Judicial Inquiry Commission in Montgomery regarding his receipt of $60,000 in campaign contributions during his unsuccessful 2004 campaign for a seat on the Alabama Supreme Court.

In April of 2005 it was reported that the source of those contributions was the Montgomery law firm of Beasley Allen, P.C., a major trial law firm which has a product liability lawsuit against Merck & Co. pending before Judge Rochester regarding the pain-reliever Vioxx. The $60,000 in contributions were apparently routed to Judge Rochester from October 7-24, 2004, through the use of 12 political action committees which were established and controlled by the same person.

Comment:

The WLF filed a petition in 1995 with Alabama bar authorities requesting that they adopt rules that limit campaign contributions to judges from trial lawyers. That should give you an idea of the WLF leanings.

It's telling to see that a Washington D.C. group - as opposed to Alabama attorneys or citizens - decides to file a complaint.

As of last week, more than 3,500 individual suits had been filed against Merckin state and federal courts nationwide.

The first trial begins next month in state court in Angleton, Texas. Two other state cases are due to be heard in Texas in September, and a fourth is set for New Jersey.

The first few federal cases will be tried here, and the discovery process is being orchestrated from this New Orleans Court as well.

Fallon may eventually send cases filed elsewhere back to their original jurisdictions.Judge Fallon told the lawyers present that there is a need for cases "that will give some variety."The first trials could come this November or December.

<>The process of gathering evidence from non party the Food and Drug Administration was moving forward, albeit slowly. "Significant disputes" remain between the two sides about what evidence Merck should turn over, with the company contending that the plaintiffs' demands are "overly broad."

Judge Fallon told the lawyers to come up with a plan by early next month to resolve disagreements over evidence.>

Friday, June 24, 2005

Merck researchers tried to reformulate Vioxx in 2000 to reduce its cardiovascular side effects, even as the drug maker was publicly playing down a study that highlighted the pain reliever's potential heart attack risk, an internal company document shows.

The widely publicized study in March 2000 found that patients taking Vioxx were five times more likely to have heart attacks than individuals using the generic medicine naproxen. Merck insisted at the time that this was a result of naproxen's cardioprotective properties and not any defect in Vioxx.

Company scientists were considering combining Vioxx with another agent to reduce the risk of heart attacks and strokes, according to a document that was mistakenly provided by Merck to plaintiffs lawyers as part of the evidence-gathering process in one of the hundreds of Vioxx lawsuits around the country.

That document, a communication between Merck researchers and the company's patent department, stated that the way Vioxx works to reduce pain might also increase cardiovascular problems. They suggested a patent be sought for a combination drug mixing Vioxx with another agent to lessen the risk.

Merck removed Vioxx from the market last September after a later study showed it doubled patients' risk of heart attacks and strokes. Thousand of wrongful death and injury lawsuits have been filed against Merck based on claims that the company hid Vioxx's risks. Analysts estimate the company's liability could reach as high as $18 billion. The first trial is set to begin next month in Angleton, Texas.

The document is potentially among the most damaging to emerge since the drug's sales were suspended because it calls into question the bedrock Merck defense that company officials were convinced of the drug's safety.

According to the document, Edward Scolnick, the former head of Merck's research labs, was the first to suggest combining Vioxx with an agent that would block blood platelets from clotting. Clots can lead to heart attacks and strokes. There are three dates on the document; the first is March 30, 2000.

The document's authors said Vioxx might reduce the production of a substance called prostacyclin, which prevents platelet aggregation. That reduction may alter the ratio of prostacyclin to thromboxane, a substance which can constrict blood vessels and cause clotting. The change may cause increased risk of cardiac and cerebral adverse events, the document said.

The document became an issue in a New Jersey Vioxx lawsuit when Merck objected to its use on the grounds that it was an attorney-client communication between company scientists and in-house patent counsel.

New Jersey Superior Court Judge Carol E. Higbee ruled May 27 that the document was privileged and could not be used at trial. She also ordered that all copies of the document be returned to Merck or destroyed, but she required Merck to turn over other documents related to the reformulation, including e-mails and memos, within 30 days.

Merck filed an application with the U.S Patent Office in 2001 to combine Vioxx with what is called a thromboxane inhibitor, according to a statement released Wednesday by the company's counsel, Hughes, Hubbard & Reed. The statement said the hope was that Vioxx could provide cardioprotective protection while preserving its gastrointestinal benefits. But the project was later dropped, making the patent application moot.

Plaintiffs lawyers say other documents call into question Merck's assertion that it acted responsibly and in the best interest of patients at all times, including pulling the drug when it had evidence of potential harm. Merck counters that the documents have been taken out of context.

The prostacyclin theory was first advanced in 1998 by Dr. Garret FitzGerald, a prominent cardiologist who said Merck did not embrace it. However, FitzGerald said that after the 2000 study was released, Merck executives called him to discuss the issue.

In a deposition earlier this month on the Vioxx case, Scolnick said that Merck did work on the reformulation because it knew Vioxx would have to carry some type of a warning about cardiovascular risk on its label.

Thursday, June 23, 2005

In a recent case state court case in Indiana, the Court chastised the Plaintiff for not using Google to find the defendant. In Munster v. Groce in Indiana, the court had to determine if the plaintiff had used “due diligence” to locate the missing defendant. That is, was there enough of an effort made to locate him.

The court ruled that the attorney for the Plaintiff Munster had not, because a simple Google search found the defendant’s address, as well as enough information to contact several relatives. No matter what you are researching, it is always a good idea to check Google, no matter how much other information you have.

Last week a web-based legal talk show network hosted a discussion regarding lawyer advertising. The show - which lasted 30 minutes, was described in these words:

"All lawyers advertise, from the tender of a business card to the employment of a state of the art website and Radio/TV ads. Whether we like to acknowledge it or not, lawyers are in the business of getting and keeping business. Some say lawyer advertising has gone too far and reflects poorly upon a noble profession. "

Go here for the archived broadcast of the discussion. There has been an extensive discussion on the broadcast at legalunderground.com. Surprisingly, or perhaps sadly, some have commented on this subject without listening to the broadcast.

My comments: In the discussion, Attorney Jim Sokolove jousted with an academic, Professor Paul Teich. In my opinion, Teich brought a pocketknife to a gunbattle. He was "armed" with research to support the opinion that lawyer ads are "crass." If I understood the Professor's comment correctly - and I listened/suffered through his comments twice - he bases his "research" on a population of, get this ... his law students.

It's worth a listen if you advertise. You will see just how well Sokolove supports his position, and the academic fails to do so in his. My report card? The Professor gets a "D."

Tuesday, June 21, 2005

Worth picking up the paper today to read a page one story on Anesthesiologists and their malpractice premiums. The docs pay less now than 20 years ago.

Notably the article says in part: "Rather than pushing for laws that would protect them against patient lawsuits, these [doctors] focused on improving patient safety." The earth shaking theory? "Less harm to patients would mean fewer lawsuits."

Attorney Joan Crumpler finished a two day trial Friday on a soft tissue injury case in Gwinnett County, Georgia. The county is known as a conservative, mostly white GOP leaning jurisdiction.

Here are the facts: Low property damage, Progressive Insurance company for the defense. The result: A six person jury awarded $10,000 to the Plaintiff and $23,500 for attys fees/expenses under O.C.G.A. Sec. 13-6-11, for soft tissue injury claim with $4,000 in meds. Retired Judge Gene Reeves was sitting for Judge Rich. Insurer was defended by in house captive counsel Shur, McDuffie. The Defendant's last offer was $7500. Jury was out for over an hour with 1 hold-out juror -- she wanted to pay more.

The $7500 offer was made on the eve of trial after the adjuster got served with a subpoena to appear at trial.

The expenses of litigation generally shall not be allowed as a part of the damages; but where the plaintiff has specially pleaded and has made prayer therefor and where the defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense, the jury may allow them.

The Georgia rule, though complex, may be simply stated as follows:

Each litigant bears its own litigation expenses unless the defendant has acted badly and the plaintiff wins, in which case, the defendant must bear the litigation expenses.

The true focus of the Georgia exception is to punish a defendant who has acted in bad faith by having to pay the other side's attorney's fees. Jones v. Spindel, 122 Ga. App. 390, 177 S.E.2d 187 (1970), cert. dismissed, 227 Ga. 264, 180 S.E.2d 241 (1971). In all cases where a litigant seeks to recover attorney’s fees and expenses of litigation, a litigant must establish a legal basis for the claim. The legal basis may arise out of statute or contract. While statutory exceptions to Georgia’s general rule for attorney's fees exist under many other statutes, this paper focuses on the general rule expressed in O.C.G.A. §13-6-11.

The Code section has a general rule and an exception, four operative requirements to trigger the exception, and three clauses describing the conduct of the defendant that triggers the exception:

Friday, June 17, 2005

Well, this is from several sources - the man who wore the Spurs mascot attire has claimed that he had a stroke as a result of Vioxx usage.

According to the link below, he is now in another job: Derk, after extensive rehabilitation, is now director of mascot development for Spurs Sports & Entertainment. He no longer suits up as the Spurs Coyote.

The FDA announced it is requiring a boxed warning be placed on all Non-Steroidal Anti-inflammatory Drugs (NSAIDs) including all Cox -2 inhibitors. The warning notifies patients of cardiovascular and gastrointestinal risks. The FDA warning includes popular over-the-counter NSAIDS, such as Aleve, Advil and Motrin.

Merck & Co. was downgraded to underperform from market perform by Friedman Billings Ramsey, due to that approaching Vioxx litigation is expected to put pressure on the stock. Analyst David Moskowitz sees pressure on earnings and revenue as the loss of Zocor patent exclusivity reduces margins, and sees risks from the company's strategic realignment. Moskowitz cut his stock price target to $27 from $32.

An unusually early settlement with Eli Lilly and Co. on made the rounds late last week, as 8,000 claims of damages over the company's Zyprexa were resolved.

The $690 million settlement came after only five plaintiffs had given depositions in the mass litigation and before any substantive depositions had been taken from Lilly executives or scientists. The first trial from the hundreds of lawsuits was at least six months off.Seven months of talks led to the proposed settlement.

Zyprexa is Lilly's most important product, generating $4.4 billion, or one third, of Lilly's sales last year. It treats schizophrenia and bipolar disorder, but is also prescribed by doctors for a host of other ailments.Lilly has estimated that 75 percent of the claims against Zyprexa that it knows of fall under the proposed settlement.

Lilly says it will fight any additional claims that aren't part of the proposed settlement, which 12 law firms signed.

Lilly's legal liability to claims from new patients is less now, compared to a few years ago, because the company in March 2004 sent a letter to doctors warning that Zyprexa could cause the diabetes-related problems that are at issue in the proposed settlement.

A total of only $560 in property damage to the client's car. Medicals were almost all chiropractic. My client was Chinese - (had green card and spoke very bad English, but was a CPA and a nice woman). State Farm admitted liability in Answer. State Farm offered 250 measly dollars up to time of trial and then $2,000 thirty days before trial.

Wednesday, June 08, 2005

<>Harvard University professor Lee Simon got a call from a Merck executive that to say the least was not expeced. Louis M. Sherwood, then a senior vice president at Merck & Co. Inc., maker of Vioxx. Based in West Point, Montgomery County, Sherwood challenged Simon's view - later proved correct - that Vioxx could cause more strokes than a rival drug.>

Sherwood didn't stop there. He said "he would hurt my career if I continued to lecture," Simon recalled. "I was astonished."

Sherwood's warning, said Simon and others allegedly also threatened, went beyond anything they had experienced before from drug companies trying to woo researchers and physicians to endorse and prescribe their products.

On Oct. 4, 2000, a Merck memo listed a professor's presentations and background, beginning with the line: "Perceived as an advocate for [another company] ." The memo also said Merck, in reaction, barred the person from Merck-sponsored conferences in the western United States, leading to conference cancellations.

My comment:

This is not a plot from a movie, and no Russell Crowe has not been signed to play the part of Dr. Lee Simon. It is however, not new. If you have not done so, and you are investigating unsafe drug cases you may want to read "Dispensing with the Truth" by Alicia Mundy. The book chronicles the tale of Fen Phen, and recounts how one respected doctor was likewise the subject of veiled threats. You can find it on Amazon here.

True intimidation? Career ending threats? Is this what the public can expect from big Pharma? It will be interesting to see if these comments come out during any deposition or trial.

Tuesday, June 07, 2005

I use overnight mail rather than certified mail. It's easier to track online at FedEx.com

IN THE SUPERIOR COURT OF BARROW COUNTY STATE OF GEORGIA

JOHN DOE

Plaintiff, CIVIL ACTION FILE NUMBER:

vs.

JANE SMITH

Defendant.

PLAINTIFF’S OFFER PURSUANT TO O.C.G.A. § 9-11-68

Plaintiff submits the following offer:

1.

Plaintiff will accept $__________________, and will enter into an agreement dismissing the pending action with the following conditions delineated below:

2.

This offer is made pursuant to O.C.G.A § 9-11-68;

3.

The party making the proposal is the Plaintiff _________________

4.

The party to receive the proposal is the Defendant ____________through her counsel;

5.

The claim(s) this proposal is attempting to resolve is the negligence action currently pending, as to all counts.

6.

The relevant conditions of this offer are as follows: That $____________ shall be paid to the Plaintiff within the time required by the referenced statute; the amount proposed to settle the claim is as stated, no punitive damages are applicable; and the proposal includes attorneys fees and all other expenses that are part of this legal claim.

7.

By making this offer of judgment pursuant to O.C.G.A § 9-11-68, Plaintiff does not agree or concede that this statute is constitutional. In fact, Plaintiff and her lawyers believe that O.C.G.A. § 9-11-68 is unconstitutional. However, Plaintiff’s lawyers have a duty to represent Plaintiff competently based on existing law, which includes O.C.G.A. § 9-11-68 unless and until that statute is found unconstitutional.

This______day of ______________, 2005. Respectfully submitted,

______________________________

Attorney for Plaintiff Georgia Bar Number: xxxxxx

CERTIFICATE OF SERVICE

This is to certify that I have this day served a true and exact copy of the foregoing PLAINTIFF’S OFFER PURSUANT TO O.C.G.A. § 9-11-68 on the following via Fax and Overnight Mail to:

Oregonians can't file suit versus Merck because of a unique-to-Oregon statute of limitations barring such lawsuits. (Oregon has a two years from the date of injury statute, as opposed to a discovery rule.)

That's prompted Oregonians who have suffered strokes or heart attacks after they used Vioxx to urge legislators to change the restrictive law.

It's also prompted fierce lobbying by the well-heeled drug industry to keep in place the bar against such liability lawsuits in Oregon.

The drug, used by more than 25 million Americans from 1999 to 2004, was withdrawn by its manufacturer, New Jersey-based Merck & Co. Inc., last September after a well-publicized clinical trial linked it to increased risk of heart attacks and strokes.

Among those seeking a change in state law is Peggy Duckworth, a Eugene plant nursery owner whose husband, Paul, died of a stroke-related aneurysm in 2002, after taking Vioxx for his arthritis. He was 57.

In 2002, Merck was aware of drug-safety studies and scientists' concerns that Vioxx may be unsafe, according to news reports published after the 2004 recall.

Because of the drug company's suppression of this information, Duckworth said, her husband kept using up a drug that may have killed him.

And because of the gap of more than two years between her late husband's stroke and her discovery of the possible connection between the stroke and Vioxx, Duckworth cannot bring a product-liability suit in Oregon courts against Merck; for people harmed before 2004, Oregon law requires that such lawsuits be brought within two years of the injury itself - not the point at which its cause is discovered.

Duckworth said she's not sure if she would sue Merck. But she thinks she should have that legal right, as she would in other states.

"I'm at the point where, if they knew it and hid it, they should be punished. But I don't even have the choice right now," she said.

A bill slated for a vote in the Senate on Tuesday would give that right to Duckworth and hundreds of others who think they were injured or lost a family member to Vioxx or other "Cox-2 inhibitor" drugs such as Bextra. New York-based Pfizer Inc. has withdrawn Bextra from the market.

Senate Bill 1011 would allow such suits for pre-2004 injuries to be filed within two years of the discovery of harm - three years if the harm was fatal - the same standards in place for Oregon product-liability cases from 2004 and forward.

But advocates for the change are finding it harder than they had expected to win the Democratic-controlled Senate's approval. With most Republicans and a handful of Democrats opposed and a few others wavering, backers say it's too close to know whether they can pass their bill.

The bill first passed out of committee a month ago, but the delay in getting it passed on the floor provided time for the more than two-dozen drug-industry lobbyists in Salem to convince lawmakers that the bill should be shelved, SB 1011 supporters contend.

"It's the powerful drug lobby locking up a good bill," said Sen. Charlie Ringo, a Beaverton Democrat who is slated to carry the bill during the upcoming floor debate.

The pharmaceutical and health products sector is a major financial player in Oregon politics. Last year, it contributed $297,671 to Oregon candidates, according to the Institute on Money in State Politics, a nonpartisan group that monitors campaign donations nationwide.

Oregon's top drug-industry lobbyist, Pharmaceutical Research and Manufacturers of America representative Jim Gardner, declined to be interviewed for this article, referring media questions to a Washington, D.C.-based public-relations official, Wanda Mobius.

Mobius said the industry was making the case to legislators that it would be unfair to retroactively change the rules for a narrowly defined group of potential litigants.

"We have serious concerns with the idea of changing the statute of limitations and the rules about how litigation can proceed after the fact," she said.

Brad Higbee, a lobbyist for the group formed to push SB 1011, Vioxx Victims United, has had the advantage of letting former users of the painkiller and their survivors tell their own emotionally compelling stories during public hearings.

But when it comes to the day-to-day lobbying for legislators' votes, Higbee said, he and the four Oregon Trial Lawyers Association lobbyists supporting the legislation have been outmatched by the drug industry.

"There's a phalanx of drug lobbyists. They follow you when you're talking to a legislator, and when you're done, they have a follow-up conversation" with the same legislator, he said.

For Eugene resident Jon Moulton, an Oregon State University professor who calls himself an "extreme novice" on political matters, the bill's woes in the Senate have been puzzling, given that the chamber's majority Democrats were thought to be more apt to side with consumers than with manu- facturers.

Moulton was taking Vioxx for pain caused by an auto accident when he suffered a heart attack at age 37. Because the heart attack occurred in 1999 but he did not discover the link between heart attacks and Vioxx until last September, he cannot sue.

Moulton has traveled to Salem with other SB 1011 backers on all five occasions that it's been scheduled for a floor vote, only to see action delayed - either because there weren't enough senators present to provide a majority vote or because of a technical problem that led to the bill's referral back to committee for an amendment. He said he'll be back in Salem on Tuesday for its next go-round.

"I understand why it hasn't been voted on, but it is a little disturbing," he said.

"I think this should be very much a nonpartisan issue. This is an issue of fairness, fairness to go into court and have our day.

The growth of malpractice payments is less than previously thought. From the study: It used data from the National Practitioner Data Bank (NPDB)to study the growth of physician malpractice payments. Judgmentsat trial account for 4 percent of all malpractice payments;settlements account for the remaining 96 percent. The averagepayment grew 52 percent between 1991 and 2003 (4 percent peryear). "These increasesare consistent with increases in the cost of health care. Apreoccupation with data on judgments, extreme awards, or specificspecialties results in an incomplete understanding of the growthof physician malpractice payments. "For more information, go here.

Friday, June 03, 2005

Several studies released this week examine how tort reform laws in different states - including 27 with caps on noneconomic damages in malpractice suits -- have affected physician services and malpractice insurance premium rates.

JAMA Study

States that capped noneconomic damages in malpractice cases experienced a 2.4% increase in overall physician supply compared with states that have no such caps, holding other factors constant, according to a study in JAMA.

The study says physician services increased in every state from 1985 to 2001, but states with damage caps saw a higher than average increase in the number of doctors than states without tort reform. In addition, the study finds that more of the services growth was among doctors with 20 or more years of experience (Washington Times, 6/1). Overall, the study finds that the supply of professionally active doctors throughout the nation increased from 497,140 in 1985 to 709,168 in 2001.

A professor at the University of Oklahoma College of Puglic Health said the data shows the impact of tort reform on physician supply is "relatively modest."

From Boston.comA new study by Dartmouth College researchers suggests that huge jury awards and financial settlements for injured patients have not caused the explosive increase in doctors' insurance premiums.

The researchers said a more likely explanation for the escalation is that malpractice insurance companies have raised doctors' premiums to compensate for falling investment returns.

The Dartmouth economists studied actual payments made to patients between 1991 and 2003, the results of which were published yesterday in the journal Health Affairs. Some previous studies haveexaminedjury awards, which often are reduced after trial to comply with doctors' insurance coverage maximums or because the plaintiff settles for less moneyto avoid an appeal. Researchers found that payments grew an averageof4 percent annually during the years covered by the study, or 52 percent overall since 1991, but only 1.6 percent a year since 2000. The increases are roughly equivalent to the overall rise in healthcare costs.

Malpractice insurance premiums for internists, general surgeons, and obstetricians have skyrocketed since 2000, jumping 20 to 25 percent in 2002 alone. In Massachusetts, ProMutual Group, which covers about one-third of the state's doctors, raised rates an averageof11 percent last year, 20 percent in 2003, and 12.5 percent in 2002. Some specialists, such as obstetricians, now pay almost $100,000 annually for their malpractice insurance.

Another study published in the same issue of Health Affairs found that doctors are gravitating toward states that cap malpractice awards, particularly obstetricians. Between 1975 and 2000, the number of obstetricians increased 40 percent in states that enacted caps during the 1980s, compared to an 8 percent rise in states without caps.

Dartmouth researchers drew their data from the National Practitioner Data Bank, to which insurers are required to report payments made on the behalf of physicians. The physician insurers association as well as the federal government have criticized the data bank because payments to hospitals are not reported -- unless a payment also was made to a doctor in the case.

Thursday, June 02, 2005

On May 30, 2005 theFinancial Times ran a story that drug manufacturers GlaxoSmithKline, Pfizer, and Johnson & Johnson are considering the use of computer software to monitor blogs and various news groups when any site mentions a company product in internet postings. Talks are supposedly underway with Netrank and it's i-reputation service. It allegedly uses uses software bots to monitor posts to blogs and other web sites.

Use of Netrank's program would allow drug makers to ID potentially any posting or comment as to a prescription drug. Most worrisome to me is that drug companies could ultimately choose to contact the person who posts on the web. Would there be a cease and desist demand made? A retraction sought by an activist? Will this have a chilling effect? Stay tuned.

A lawyer for Merck & Co. has asked the Court to dismiss a State Court class ction pending in Madison Count, Illinois.

Suite was filed a week after Merck removed its arthritis pain medication from the market for safety reasons on September 30, 2004. The class action complaint alleges that the the drug maker deceived consumers into believing Vioxx was a superior product over others and that it hid the drug's dangerous side effects. Interestingly, the suit seeks to recover no more than $75,000 minus costs and interest per class member.

Merck's lawyer claims that allowing the suit to proceed would encourage others to file lawsuits to circumvent adverse rulings or force settlements.

Ball claims that Merck will suffer substantial prejudice if it is forced to simultaneously litigate identical claims in multiple courts by facing the risk of inconsistent rulings and judgments.